Moore v. Mitchell

Decision Date18 January 2008
Docket NumberNo. 1:00-CV-023.,1:00-CV-023.
Citation531 F.Supp.2d 845
PartiesLee E. MOORE, Petitioner, v. Betty MITCHELL, Warden, Respondent.
CourtU.S. District Court — Southern District of Ohio

Laurence E. Komp, Manchester, MO, Lori Leon, Law Offices of the Federal Public Defender, Las Vegas, NV, Mark A. Losey, McNees Wallace & Nurick LLC, Columbus, OH, Michael Jay O'Hara, O'Hara Ruberg Taylor Sloan & Sergent, Crestview Hills, KY, for Petitioner.

Charles L. Wille, Principal Assistant Attorney General, Henry G. Appel, Matthew C. Hellman, Ohio Attorney Generals, Columbus, OH, for Respondent.


SUSAN J. DLOTT, District Judge.

In this case, Chief Judge Magistrate Michael R. Merz has recommended that the Supplemental Petition for Writ of Ha beas Corpus ("Supplemental Petition") (doc. 29) filed by Petitioner Lee E. Moore be conditionally granted in part and denied in part. Pending before the Court are Chief Magistrate Judge Michael R. Merz's Report and Recommendations ("the R & R") (doc. 128), the Warden's Objections to the R & R (doc. 130), and Petitioner's Objections to the R & R (doc. 132); plus Chief Magistrate Judge Merz's Supplemental Report and. Recommendations ("the Supp. R & R") (doc. 135), the Warden's Objections to the Supp. R & R (doc. 136), and Petitioner's Objections to the Supp. R & R (doc. 137). The Warden and Petitioner have also filed briefs in opposition to each other's Objections.

For the reasons that follow, the Court will CONDITIONALLY GRANT IN PART AND DENY IN PART the Supplemental Petition. Accordingly, Petitioner's Objections are GRANTED IN PART AND DENIED IN PART and the Warden's Objections are DENIED.

A. Factual Background of the Crime

The Ohio Supreme Court described the underlying facts of the crimes for which Petitioner was convicted and sentenced to death as follows:

On the evening of January 14, 1994, defendant-appellant, Lee Edward Moore, Jr., and Jason Holmes abducted Melvin Olinger at gunpoint and forced him into the trunk of his blue Ford Taurus. Moore drove Olinger's car to Mt. Healthy, dropped Holmes off, and picked up Larry Kinley. The two drove Olinger's car to a factory area in Cincinnati, where Moore ordered Olinger out of the trunk, robbed him of his wallet, and shot him in the head, killing him. Moore later admitted committing the crimes but claimed that the shooting was accidental. Moore was subsequently convicted of aggravated murder, kidnapping [sic], and aggravated robbery, and sentenced to death.

On January 14, at approximately 7:20 p.m., Melvin Olinger, a suburban Chicago businessman, visited his parents in Fairfield. Olinger then went to a funeral home during calling hours for a friend who had passed away. Later, he went to Gina's, a bar, around 9:00 to 9:30 p.m., where he talked with Charlotte James. He told her that he was going to visit his mother that evening before returning to Chicago the next day. Olinger stayed in the bar for about fifteen minutes.

That same evening, Moore and Jason Holmes drove to Fairfield, intending to steal a car. Moore waited outside Gina's and saw Olinger get out of his blue Ford Taurus and enter the bar. When Olinger returned to his car, Moore confronted him with a gun and told Olinger to get in. Moore drove the Taurus to the rear of the bar and forced Olinger to climb into the trunk. Moore drove the Taurus to Larry Kinley's house in Mt. Healthy while Holmes followed in Moore's Ford Fairmont.

Moore and Kinley drove to a store in the Taurus, leaving Holmes behind to baby-sit. Moore told Kinley how he had stolen the car and that he was going to get it painted and modified. Moore told Kinley that he was driving to the Cumminsville area of Cincinnati to show the car to a friend. Instead, Moore drove to a factory area at 3366 Llewellyn Street. On the way, Moore told Kinley that he was going to kill the man in the trunk. When Kinley asked Moore why he was going to kill the man, Moore responded, "This ain't nothing. * * * We're not going to get caught for it."

Upon driving into the factory area, Moore headed toward a dumpster. He stopped the car and let Olinger out of the trunk while Kinley remained in the car. Kinley testified that he didn't see what happened because the trunk lid was up, but that he heard Moore tell Olinger to empty his pockets. Kinley testified that Moore directed Olinger to the corner by the dumpster and that he heard Olinger beg and plead to Moore about Olinger's sick mother.

Kinley heard a gunshot, then Moore jumped into the car. According to Kinley, Moore laughed and asked him, "Did you see his dome get shot off?" After leaving the scene, Moore directed Kinley to take the credit cards out of Olinger's wallet. Kinley said that Moore sounded upset because he had forgotten to ask Olinger for the personal identification number to his Jeanie card.

In a taped statement to police, Moore claimed that he asked Olinger for his wallet after directing him to the dumpster. When Olinger dropped the wallet and stepped forward, Moore said that he panicked and "accidently pulled the trigger. But it was an accident. * * * I had a large amount of drinks an' * * * some marijuana. An' it truly truly was an accident."

Moore and Kinley returned to Kinley's house, where Moore told Holmes what had happened. Moore told Holmes that he planned to keep the Taurus and that Holmes could use his Fairmont any time he wanted. At Moore's request Kinley took the Michigan plates off Olinger's Taurus. Kinley then took one of the plates off Moore's Fairmont and put it on the Taurus.

The next day, Moore and Kinley went out to get "some stuff." Moore used Olinger's credit card to purchase over $1,000 worth of clothing and jewelry at two J.C. Penney stores in the Cincinnati area. A sales clerk became suspicious and contacted Penney's loss prevention officer. The officer observed two black males place their purchases in the trunk of a "blue Ford Taurus with Ohio tags and drive away.

At approximately 5:30 p.m. on January 20, police apprehended Moore and Kinley as they waited for an order in the drive-through lane of a McDonald's restaurant. Moore was placed in a holding cell at the Mt. Healthy police station. Officers confiscated several items of clothing from Moore which were believed to have been purchased with Olinger's credit card. Shortly after midnight, Moore was advised of his Miranda rights and signed a waiver of rights form.

Moore was then taken to the downtown Cincinnati police station for questioning. Although the weather was cold and snowy, Moore was required to walk a short distance to and from the police car in his stocking feet, since his shoes had been confiscated as evidence. At approximately 6:30 a.m., while "crying a little bit" and sniffling, Moore admitted to police that he had robbed and kidnapped [sic] Olinger and that he had shot and killed Olinger. He claimed that the shooting was accidental.

Based on information supplied by Kinley, police located Olinger's body. The chief deputy coroner determined that Olinger had died of a single gunshot wound to the head fired from a distance of between six and twenty-four inches away.

State v. Moore, 81 Ohio St.3d 22, 22-24, 689 N.E.2d 1 (1998).

B. Procedural History-State Court Proceedings1

The Ohio Supreme Court summarized the procedural history of Petitioner's conviction and sentencing as follows:

The grand jury indicted Moore on three counts of aggravated murder, one count of aggravated robbery; and one count of kidnapping. All counts carried a firearm specification. All three aggravated murder counts carried three death-penalty specifications: (1) aggravated murder, to escape detection for kidnapping and/or aggravated robbery (R.C. 2929.04[A][3] ); (2) aggravated murder committed in connection with kidnapping where Moore either was the principal offender or committed the aggravated murder with prior calculation and design (R.C. 2929.04[A][7] ); and (3) aggravated murder committed in connection with aggravated robbery where Moore either was the principal offender or committed the aggravated murder with prior calculation and design (R.C. 2929.04[A][7] ).

The defense essentially admitted Moore's involvement in the crimes. It argued that Moore had not formed the specific intent to kill Olinger. After deliberation, the jury found Moore guilty as charged.

Prior to the mitigation hearing, the trial court merged the three death specifications of Count I (aggravated murder committed with prior calculation and design) into one specification: murder to escape detection for kidnapping and/or aggravated robbery. The court also merged the two felony murder counts into one count and merged the three specifications attached to these counts into two: murder during kidnapping and murder during aggravated robbery. During the mitigation hearing, several witnesses testified on Moore's behalf, and Moore gave a remorseful unsworn statement admitting the wrongfulness of his actions.

The jury recommended death, and the court imposed tile death penalty. The court also imposed consecutive prison sentences for Moore's other convictions.

Id. at 24, 689 N.E.2d 1.

Moore appealed his conviction and sentence to the Court of Appeals, First Appellate District, Hamilton County, Ohio. After reviewing the merits of Moore's assignment of errors, re-weighing the aggravating circumstances against the mitigating factors, and independently assessing the appropriateness of the penalty of death, the court of appeals affirmed Moore's conviction and the sentence of death. State v. Moore, No. C-950009, 1996 WL 348193 (Ohio App. June 26, 1996).

Moore then filed...

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